Anas v. Blecker

141 F.R.D. 530, 1992 U.S. Dist. LEXIS 11005, 1992 WL 70354
CourtDistrict Court, M.D. Florida
DecidedApril 3, 1992
DocketNo. 85-1364-CIV-21A
StatusPublished
Cited by3 cases

This text of 141 F.R.D. 530 (Anas v. Blecker) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anas v. Blecker, 141 F.R.D. 530, 1992 U.S. Dist. LEXIS 11005, 1992 WL 70354 (M.D. Fla. 1992).

Opinion

ORDER

WILSON, United States Magistrate Judge.

THIS CAUSE is before the Court upon Defendant Blecker’s Emergency Motion for Protective Order (doc. 557). The Court, having considered the motion and the responses thereto, and being otherwise fully advised in the premises, finds as follows:

1. The Defendant’s motion for protective order seeks to prevent the Plaintiffs from deposing a representative of the Appraisal Institute (“Institute”), in Illinois, and compelling the production of confidential Institute files and records regarding disciplinary proceedings stemming from complaints against Defendant Blecker filed with the Institute. The Institute contends that the disciplinary proceedings, and documents relating to these proceedings, are privileged.

Federal Rule of Evidence 501

2. Since the motion raises the question of whether a privilege applies to the requested testimony and production, Federal Rule of Evidence 501 controls. The rule provides in pertinent part:

n civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with state law.

Fed.R.Evid. 501 (emphasis added).

3. This subpoena arises out of a state law fraud action, involving the sale of a limited partnership interest in thirty properties. Multiple plaintiffs brought suit against multiple defendants, including Ronald Blecker. The case was tried to a verdict, and judgment was entered in favor of Blecker. Dismissal of the federal securities laws claims was affirmed on appeal. On remand, after appeal, all that remains are Plaintiffs’ state law claims and it is clear that state law will supply the rule of decision. Pursuant to Federal Rule of Evidence 501, the Court will apply state law to resolve the privilege issue.1

Florida’s Choice of Law Rules

4. The Court must next determine which state’s choice of law rules apply. “In determining the applicable law, a federal court hearing a non federal claim must apply the law of the State in which it sits, including the State’s choice of law rules.” Civic Assocs. v. Security Ins. Co., 749 F.Supp. 1076, 1079 (D.Kan.1990) (emphasis added); S.E.C. v. Elmas Trading Corp., 683 F.Supp. 743, 748 (D.Nev.1987); Abston v. Levi Strauss & Co., 684 F.Supp. 152, 154 (E.D.Tex.1987); Bi-Rite Enters, v. Bruce Miner Co., Inc., 757 F.2d 440, 442 (1st Cir.1985). Florida’s choice of law rules therefore control.

[532]*5325. The Court notes that the Florida courts have consistently applied the Restatement (Second) of Conflict of Laws in other tort cases where a choice of law issue has arisen. See, Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla.1980); Proprietors Ins. Co. v. Valsecchi, 435 So.2d 290 (Fla. 3d DCA 1983); Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla.1984); Stallworth v. Hospitality Rentals, Inc., 515 So.2d 413 (Fla. 1st DCA 1987), Jones v. Cook, 587 So.2d 570 (Fla. 1st DCA 1991).

Other federal courts have also depended upon Section 139 of the Restatement to resolve choice of law questions relating to privileges. See, Mazzella v. Philadelphia Newspapers, Inc., 479 F.Supp. 523 (E.D.N.Y.1979); Independent Petrochemical v. Aetna Casualty and Sur. Co., 117 F.R.D. 292 (D.D.C.1987); Bamco 18 v. Reeves, 685 F.Supp. 414 (S.D.N.Y.1988).

6. Section 139(2) Restatement (Second) of Conflict of Laws provides:

(2) Evidence that is privileged under the local law of the state which has the most significant relationship with the communication but which is not privileged under the local law of the forum will be admitted unless there is some special reason why the forum policy favoring admission should not be given effect.

(emphasis added). The Institute is a voluntary association of real estate appraisers, and an Illinois non-profit corporation, that regulates appraisers from all over the United States. The Court finds that it would be against public policy to apply the law of the state of residence of the appraiser, or the state where litigation is pending, in deciding issues relating to the Society’s internal rules, regulations and policies. Such a rule would subject the Institute to the privilege laws of all fifty states. The possibility of conflicting decisions in different states would impair the Institute’s ability to conduct peer review and disciplinary proceedings. For these reasons, the Court finds that a special reason exists not to give effect to the Florida policy favoring admission. As explained below, the comment to Section 139 also supports this decision.

7. Comment (e)"to Section 139 explains that the “state with the most significant relationship will usually be the state where the communication took place, which as used in the rule of this Section, is the state where an oral interchange between persons occurred, where a written statement was received, or where an inspection was made of a person or thing.” Since the disciplinary proceeding was held in Illinois, and the communications involved in the disciplinary proceeding were given and received in Illinois, the Court finds that Illinois is the state with the most significant relationship with the communications at issue.

8. Comment (d) to Section 139 explains that

The forum will admit evidence that is not privileged under its local law but is privileged under the local law of the State which has the most significant relationship with the communication, unless it finds its local policy favoring admission of the evidence is outweighed by countervailing considerations. Among the factors the forum will consider in determining whether or not to admit the evidence are (1) the number and nature of the contact that the forum state has with the parties and with the transaction involved, (2) the relative materiality of the evidence that is sought to be excluded, (3) the kind of privilege involved, and (4) fairness to the parties.

(emphasis added). Factors (2) and (4) are critical to the Court’s resolution of this matter.

9. The comment’s discussion of factor (2), the relative materiality of the evidence sought, indicates that the forum will be more likely to give effect to the foreign privilege if the evidence would “be unlikely to affect the result of the case or could be proved in some other way.” (emphasis added)

The Court finds that the evidence sought in the subpoena is duplicative and therefore not material to the outcome of this case. This finding is based upon Plaintiffs’ own statement that “Plaintiff wants to verify and expand known information.” PI. ’s Resp. to Ct. ’s Reg. for Mem. on Conflict of [533]*533

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Bluebook (online)
141 F.R.D. 530, 1992 U.S. Dist. LEXIS 11005, 1992 WL 70354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anas-v-blecker-flmd-1992.